Hernandez v. State , 1986 Tex. Crim. App. LEXIS 813 ( 1986 )

OPINION ON APPELLANT’S PETITION FOR DISCRETIONARY REVIEW

TOM G. DAVIS, Judge.

Trial was before the jury¹ upon appellant's plea of not guilty to a charge of capital murder. V.T.C.A. Penal Code, Sec. 19.03(a)(2). After the jury found appellant guilty, the court, acting pursuant to V.T. C.A. Penal Code, Sec. 8.07(d), assessed punishment at life. The Court of Appeals for the Third Supreme Judicial District (Austin) affirmed appellant’s conviction in an unpublished opinion, Hernandez v. State, No. 3-82-370, (Delivered September 21, 1983). We granted appellant’s petition for discretionary review in order to examine the Court of Appeals’ holding that appellant’s trial counsel rendered effective assistance.

Following the Court of Appeals’ decision, the United States Supreme Court handed down its opinion in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The opinion in Strickland established an authoritative federal constitutional standard for determining ineffectiveness of counsel and for ascertaining when such ineffectiveness is prejudicial.

Accordingly, prior to examining the facts of the instant case, we determine whether under Art. I, Sec. 10 of the Texas Constitution and Art. 1.05, V.A.C.C.P. we must apply higher standards than those enumerated in Strickland.

With respect to determining ineffectiveness, the general standard established in Strickland differs little or not at all from this Court’s standard, which in turn is based on Fifth Circuit precedents.

In Ex parte Duffy, 607 S.W.2d 507 (Tex.Cr.App.1980), and its progeny we stressed that effective counsel is counsel “rendering and likely to render” reasonably effective assistance.

The Supreme Court in Strickland noted: “As all the Federal Courts of Appeals have now held, the proper standard for attorney performance is that of reasonably effective assistance ... When a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness.

“More specific guidelines are not appropriate ... The proper measure of attorney performance remains simply reasonableness under prevailing professional norms ...

“ ... A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance ... [T]he court should recognize that counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” 104 S.Ct. at 2064-66.

Since we find that the threshold standard for determining effective assistance of counsel enunciated in Strickland is not substantively different from the standard this Court has propounded in recent years, there is no reason for refusing to apply the Strickland standard to cases arising under Art. I, Sec. 10 of the Texas Constitution or Art. 1.05, V.A.C.C.P.

The test for determining prejudice or reversible error resulting from ineffective assistance of counsel was also spelled out in Strickland:

“ ... The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 104 S.Ct. at 2068.²

This test, at least in certain circumstances, differs from the tests devised by our Court to determine prejudice in ineffective assistance cases. See, for example, Ex parte Duffy, supra, where we held, again based on Fifth Circuit precedent, that effective assistance was so important a right to a petitioner condemned to death that its infraction could never be treated as harmless error. Does our recent case law or the language and history of Art. I, Sec. 10, or Art. 1.05, Y.A.C.C.P., suggest that a defendant should be put to a lesser standard of proof in establishing prejudice than the Strickland standard?

Starting with the opinion in Caraway v. State, 417 S.W.2d 159 (Tex.Cr.App.1967), this Court has consistently applied the test for effectiveness of counsel employed by the Fifth Circuit in MacKenna v. Ellis, 280 F.2d 592 (5th Cir.1960), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). That is, this Court has consistently and consciously applied a federal constitutional standard in all effectiveness cases and has utilized the standards enunciated by the Fifth Circuit in the absence of an authoritative and comprehensive opinion from the Supreme Court. See Mercado v. State, 615 S.W.2d 225 (Tex.Cr.App.1981). In Strickland, the Supreme Court clearly set forth the federal constitutional standard to be followed.

As far as the language of Art. I, Sec. 10 is concerned (as well as the identical language in Art. 1.05, V.A.C.C.P.),³ in no way can it be independently interpreted to provide greater protection for a defendant beset by ineffective assistance of counsel than the protection provided by Strickland. The language of Art. I, Sec. 10, insuring that a defendant “shall have the right of being heard by himself or counsel, or both,” can be traced back to the 1836 Constitution of the Republic of Texas and was obviously modeled on the Sixth Amendment to the federal constitution⁴ which guarantees the accused’s right, “to have the Assistance of Counsel for his defense.”

The Sixth Amendment right to be heard by counsel was originally understood, and understood throughout all of the 19th and the earlier part of the 20th century, to encompass the right of a defendant to retain counsel of his own choice for the preparation and trial of a case. The provision was not yet understood to include the right of an indigent defendant to have counsel appointed at State expense or the right of any defendant to enjoy effective assistance of counsel.⁵

The right to effective assistance of counsel as we understand it today was derived from the right to be heard by counsel.⁶ Accordingly, in no sense can the language or intent of the framers of Art. I, Sec. 10, be interpreted to include a right to effective assistance of counsel greater than that provided by Strickland.

An examination of this Court’s case law regarding effective assistance in the years before the Sixth Amendment was incorporated into the Fourteenth⁷ and applied to the States only serves to buttress the point.

Ineffective counsel or counsel not permitted by the trial court to be effective was tantamount to no counsel at all and hence a violation of Art. I, Sec. 10. Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116 (1954); Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). Even “no counsel at all,” however, did not result in reversible error in the absence of a showing of harm. See Fuller v. State, 117 Tex.Cr.R. 558, 37 S.W.2d 156 (Tex.Cr.App.1931). See also Fletcher v. State, 396 S.W.2d 393 (Tex.Cr.App.1965), and Jones v. State, 388 S.W.2d 429 (Tex.Cr.App.1965), two cases decided shortly after Gideon v. Wainwright, supra, where a showing of harm was required of defendants asserting ineffective assistance claims.

In short, our constitutional and statutory provisions do not create a standard in ineffective assistance cases that is more protective of a defendant’s rights than the standard put forward by the Supreme Court in Strickland. Accordingly, we will follow in full the Strickland standards in determining effective assistance and prejudice resulting therefrom.

Turning to the instant case, we summarize the facts relevant to appellant’s ineffective assistance claim.

During the evening of June 2, 1977, appellant and two other youths, Michael Castro and Manuel Gonzales, unlawfully entered a habitation at 1607 East 11th Street in Austin. The youths were looking for bullets to use in a rifle they had been firing at fence posts earlier in the day. The youths found and appropriated some .22 caliber bullets during their search. Appellant confessed to loading the rifle, but trial testimony conflicted as to which of the boys loaded the rifle.

At some point during their wanderings in the house the youths came upon Domingo Vasquez, the deceased, and resident of the house, who was asleep under a pile of rags on the kitchen floor. Appellant and his cohorts discussed killing the deceased but decided against doing so.

Some time later, the youths returned to Vasquez and roused him from his sleep whereupon the old man chased the boys out of the house brandishing an ax.

The three youths stopped in the deceased’s front yard. As the deceased came out of the front door, appellant shot him with the rifle.

Testimony differed as to whether Vasquez was still in the process of chasing the boys when shot or was instead in the process of returning to the inside of his home. The fatal shot, however, entered the deceased from the back and the testimony was undisputed that no barrier blocked the retreat of appellant and his friends.

After appellant shot the deceased he took the butt of the rifle and hit the deceased in the head as he tried to get up. The three youths then rifled through the deceased’s pockets. Appellant and his friends were arrested the next day while attempting to burglarize another residence.

According to appellant, his trial counsel rendered ineffective assistance for three reasons: failure to pursue an insanity defense; presentation of evidence that rebutted the defense of self-defense; ignorance of the facts of the case and governing law.

Appellant contends that trial counsel improperly failed to pursue an insanity defense because of incomplete investigation. An insanity defense was purportedly warranted due to a psychological report filed by court psychologist D.I. Goldwater and due to testimony showing that appellant consumed a large amount of beer and sniffed paint on the day of the offense.

Appellant has not proffered any facts showing that trial counsel failed to thoroughly investigate an insanity defense. Admittedly this is often a difficult thing to do on direct appeal. We cannot, however, assume that because a record is silent as to the depth of an attorney’s investigation of the insanity defense, he made no such investigation. Appellant is free to pursue his ineffectiveness claim on collateral review where the facts surrounding trial counsel’s representation may be developed at a hearing.

Dr. Goldwater’s report strongly suggested that with respect to certain of his communicative skills appellant, a fifteen year old, had the mental development of an eight and one half year old, and that appellant often acted impulsively. This alone does not prove that trial counsel failed to further investigate an insanity defense. Not mentioned by appellant are two reports in the appellate record sent to the Travis County District Attorney by Dr. Coons indicating that appellant was sane at the time of the offense and competent to stand trial.

As to appellant’s consumption of beer and sniffing of paint and the relation of these to an insanity defense, V.T.C.A. Penal Code, Sec. 8.04, precludes the use of a voluntary intoxication-insanity defense to the commission of crime. See Hawkins v. State, 605 S.W.2d 586 (Tex.Cr.App.1980).

Trial counsel’s purported presentation of evidence that rebutted the defense of self-defense involved the testimony of code-fendant Michael Castro whose trial was severed from appellant’s. Castro testified that he thought the deceased had abandoned his pursuit of appellant and friends at the time appellant shot him.

Trial counsel cross-examined and later called to the stand both Castro and Manuel Gonzales, the other accomplice. In many respects, counsel’s cross-examination of Gonzales was effective, establishing that Gonzales and Castro were as much involved in ransacking the deceased’s house as appellant and showing that Gonzales was afraid when the deceased chased them out of his house wielding an ax. The examination of Castro tended to support Gonzales’ testimony until the former testified that the deceased had turned to go when appellant fired a shot. Medical testimony reflected that the deceased died from a bullet wound to the back.

Given the options available to trial counsel in a case where the evidence against his client was overwhelming, we cannot sit in hindsight and find ineffectiveness due to an error such as this, involving a calculated risk in examining a codefend-ant. The right to effective counsel is not the right to error-free counsel.

Trial counsel’s supposed ignorance of the facts of the case and governing law takes several forms according to appellant.

In order to impeach Manuel Gonzales on cross-examination trial counsel introduced his written confession. The State contended, and the trial court agreed, that certain statements in the confession “opened up” extraneous offenses that the State could elaborate upon. These extraneous offenses were a previous burglary of the deceased’s house and the attempted burglary the youths were engaged in on the day of their arrest. Even if counsel was ignorant of the law and ineffective in allowing these extraneous offenses to come in, there is no reasonable probability that the jury’s verdict would have been different absent the mistake. The underlying burglary in the capital murder was overwhelmingly established and ample evidence supported a conclusion that appellant and his friends were unsavory characters.

Likewise defense counsel’s supposed ignorance of V.T.C.A. Family Code, Art. 51.09’s requirement concerning a proper magistrate’s warning could in no way have affected the jury’s verdict. Defense counsel apparently did not realize that there were two warnings by two different magistrates in the instant case and that only the warnings administered when the defendant signed a waiver of his rights had to be given outside the presence of a police officer. The evidence however unequivocally established that no officer was present when appellant signed his waiver of rights.

Appellant chastises trial counsel for failing to subpoena witness Martin Rodriguez until the morning he was called to testify and witness John Reyes until the afternoon before he was slated to testify. Further, with respect to Rodriguez, trial counsel stated that he did not think his absence was, “really going to hurt the case, but I would like to have his testimony because it—something may come out.” Rodriguez never testified but Reyes’ written statement was admitted into evidence and stipulated to by both parties. Reyes’ letter confirmed that the deceased carried an ax about him in order to protect himself.

Though trial counsel’s behavior with respect to the subpoenas evidenced lack of preparedness, we cannot say on this record that there is a reasonable probability the result of the trial would have been different if counsel had seen to it that Rodriguez testified.

Finally, trial counsel’s attempt to object to the charge revealed ineptness at preserving error.

Counsel’s entire objection to the jury charge was as follows:

“[Defense Counsel]: Your Honor, I have no objections as such. However, I would like to have a charge included in here. And I will, of course, leave this to your discretion, but I’d like to have something in here that indicates that if the defendant is not found guilty of the offense of capital murder that he may be reindict-ed — recharged on a charge of voluntary manslaughter.

“THE COURT: That request will be denied.

“[Defense Counsel]: Okay. And I’d move that the charges—

“I object to the charge on the ground that the issue is not sufficiently supported by the pleading and ask you to rule on that.

“THE COURT: All right, it will be overruled.”

The best that can be said about the foregoing performance is that trial counsel was attempting in an inept fashion to obtain a charge on voluntary manslaughter or self-defense.

Once again, however, appellant has failed to establish prejudice. Appellant does not contend that the evidence supported a charge on voluntary manslaughter.⁸ With respect to his claim of self-defense, evidence to support same was at best extremely weak. It was uncontradict-ed that nothing blocked appellant’s retreat and that the deceased died from a bullet wound to the back. Moreover, appellant and his friends were in the course of burglarizing the deceased’s home.

It is obvious from a review of the entire record that in certain respects trial counsel rendered sub-par assistance. But in the particular instances where this occurred, it has not been shown, as required by Strickland, that there is a reasonable probability, or a probability sufficient to undermine confidence in the outcome, that the result of the proceeding would have differed had trial counsel’s assistance been effective.

Appellant is free to develop the facts further in a post-conviction habeas hearing, particularly with respect to counsel’s alleged failure to pursue an insanity defense.

The judgment of the Court of Appeals is affirmed.

CAMPBELL, J., concurs in result.

1 . Prior to trial the juvenile court waived jurisdiction and certified appellant, a fifteen-year-old juvenile, for criminal prosecution.

2 . The Supreme Court specifically rejected a stricter test that would have required a defendant to show that his counsel’s deficient conduct more likely than not altered the outcome in the case.

3 . Art. 1.05, V.A.C.C.P., is in essentially the same form as predecessor statutes which date back to the 1911 Code of Criminal Procedure.

4 . See G. Braden, et al (Eds), The Constitution of the State of Texas: An Annotated and Comparative Analysis, Pages 35-36 (1977).

5 . See L. Jayson, et al (Eds.), The Constitution of the United States Of America: Analysis And Interpretation, Pages 1215-1216 (U.S. Government Printing Office) (7th ed. 1972); W. Beaney, The Right to Counsel in American Courts, Pages 22-28 (1955).

6 . The Supreme Court first used the term "effectiveness” with respect to appointment of counsel in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). That Court made clear in Avery v. Alabama, 308 U.S. 444, 60 S.Ct. 321, 84 L.Ed. 377 (1940), that Sixth Amendment right to counsel included the right to effective assistance of counsel. See S. Krantz, et al, (Eds.), Right to Counsel in Criminal Cases, Page 166 (1976); and Waltz, Inadequacy of Trial Representation As a Ground for Post-Conviction Relief In Criminal Cases, 59 Nw.U.L. Review 289 at 293-295 (1964).

It is clear however that many courts entertained what amounted to ineffective assistance of counsel claims before this time, especially if counsel was appointed. See, for example, Turner v. State, 91 Tex.Cr.R. 627, 241 S.W. 162 (1922). As late as 1948, however, our Court refused to decide whether an accused with retained counsel could complain of ineffective assistance. Ex parte Lovelady, 152 Tex.Cr.R. 93, 207 S.W.2d 396 (1948). Further, we did not always state what constitutional or statutory provision guaranteed the right to effective assistance. See Jones v. State, 159 Tex.Cr.R. 526, 265 S.W.2d 116(1954).

7 . Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

8 . Nor would such a contention be correct. Appellant did not testify, and there was no evidence that he indicated to anybody that he had feelings of anger, rage, resentment, or terror at the time of the offense. See Luck v. State, 588 S.W.2d 371 (Tex.Cr.App.1979). Moreover, we do not believe that “sudden passion” arises from an "adequate cause” under V.T.C.A. Penal Code, Sec. 19.04, when a defendant is in the course of committing one of the underlying offenses delineated in V.T.C.A. Penal Code, Sec. 19.03(a)(2). See Smith v. State, 168 Tex.Cr.R. 102, 323 S.W.2d 443 (Tex.Cr.App.1959); Leza v. State, 149 Tex.Cr.R. 448, 195 S.W.2d 552 (1946); W. La-Fave and A. Scott, Jr., Criminal Law, Sec. 76 (1972).